New York Family Law Blog
A New York Family Lawyer said that on or about September 27, 2008 at about 2:30 a.m, plaintiff was a rear seat passenger in a vehicle operated by defendant driver and owned by his mother, and her husband, sustained injuries when defendant driver lost control of his vehicle and struck a tree head on. A Nassau Order of Protection Lawyer said that, at the time of the accident, only possessed a junior’s driver’s license. Prior to the accident, between the hours of 8:30 p.m. and 10:30 p.m., defendant driver and plaintiff were a guests at a party held in the home of defendant, located in Port Washington, New York, and hosted by teen-aged defendant and her daughter. Defendant was at her place of employment in New York City and was not on site during the party. All guests were under the age of twenty-one (21) and alcohol and drugs were consumed on the premises. Defendant driver is alleged to have consumed alcohol and drugs at the party and to have left the party in an intoxicated and/or impaired state. Plaintiff has admitted during his pre-trial deposition, that he consumed drugs and alcohol during the hours preceding the accident. Defendant driver is alleged to have operated his vehicle while under the influence of controlled substances and the subject accident was a direct consequence.
A New York Child Custody Lawyer said that, plaintiff and his mother, “plaintiffs”, commenced the underlying personal injury action against all defendants on or about December 9, 2008. The plaintiffs allege liability against defendant driver under the theory of negligence and against his parents, vicarious liability as owners of the vehicle. In addition they plead causes of action against his parents in negligence per se, and negligent entrustment of a vehicle. The plaintiffs also allege that plaintiff victim sustained a serious injury pursuant to the no fault statutory provisions. The defendants set forth five affirmative defenses in its answer: Plaintiff’s damages were caused by his culpable conduct; the complaint failed to state a cause of action; he failed to use or misused his seatbelt; he did not sustain a serious injury; and he was obligated to mitigate his damages and he failed to do so.
A Nassau Child Custody Lawyer said that, upon the plaintiffs’ motion on or about May, 2009, this Court granted summary judgment as to the first cause of action against the defendants, while denying the defendants’ motion for an Order consolidating the three pending related causes of action against them, instead joining the three actions for a joint trial. The plaintiffs then moved this Court on or about December 21, 2009 pursuant to CPLR 3212, for an Order granting Summary Judgment as to the second cause of action alleging that plaintiff sustained a serious injury, and for an Order pursuant to CPLR 3211 dismissing the defendants’ first, second, third, and fifth affirmative defenses. The Court granted the plaintiff’s motion as to the first, second and third affirmative defenses while reserving its decision on the fifth pending completion of discovery. The defendants’ concession that plaintiff sustained a serious injury, obviated striking of the fourth affirmative defense.
A Westchester County Family Lawyer said that, the defendants, in the instant motion, argue that the Court misinterpreted or overlooked pertinent facts in reaching its decision regarding the striking of the second affirmative defense that said affirmative defense failed to state a cause of action. The defendants contend that the plaintiffs’ entire motion was brought under the Summary Judgment provisions of CPLR 3212 and no part of the motion was brought under CPLR 3211. In addition, as the plaintiffs did not bring a cause of action against defendant in negligence per se, there could be no viable cause of action against his parents, under that theory. Further, the defendants aver that if there is no cognizable cause of action in negligence per se, a cause of action in negligent entrustment of a vehicle cannot be sustained.
The issue in this case is whether the personal injury case states no cause of action against defendant parents.
A Westchester Custody Lawyer said the court held that defendants are incorrect regarding the mechanism under which the plaintiffs sought relief. It is clear that the language in their papers clearly set forth the relief sought and the plaintiffs’ Reply Affirmation specifically cited CPLR 3211(b) as the procedural mechanism by which they sought dismissal of certain affirmative defenses. Contrary to the defendants’ position, the standards for Summary Judgment and a Motion to Dismiss are distinguishable. The fact that defendants devote several paragraphs to argue that plaintiffs’ entire motion was one of Summary Judgment, underscores that very point.
It is apparent to this Court that the plaintiffs’ references to Summary Judgment regarding the second, third and fifth affirmative defenses were most likely due to a drafting error. Plaintiffs moved pursuant to CPLR 3211 and the Court ruled pursuant to CPLR 3211. As stated in its previous decision, this Court cannot sua sponte convert this motion to dismiss to a motion for Summary Judgment absent giving adequate notice to both parties. Accordingly, the defendants’ motion to reargue as to this issue is denied.
While the defendants seek a reversal of the determination that Court’s decision to strike the affirmative defense of failure to state a cause of action, they refer only to two causes of action in which they seek this remedy; negligent entrustment of a vehicle, and negligence per se with regard to defendant parents. The Court grants the motion and reverses its determination only with respect to the cause of action sounding in negligence per se.
It is undisputed that defendant driver was driving with a junior’s driver’s license at about 2:30 a.m. which was violative of Vehicular and Traffic Law §501(3)(a) (ii) which states in part: “A class DJ license shall permit the holder to operate a vehicle in accordance with the following restrictions from five o’clock in the morning to nine o’clock in the evening, to and from a place of business where the holder is regularly employed, or when accompanied by a duly licensed parent, guardian, a person in a position of loco parentis, driver education teacher or driving school instructor.” However, the statute speaks only to the driver of the vehicle, not those who entrust the vehicle to the driver. Therefore, the allegation of negligence per se is attributable only to defendant driver. As the defendant parents were not driving the vehicle, they were not in violation of the statute. Accordingly, there is no cognizable cause of action in negligent per se against them.
However, the Court affirms its prior determination that the plaintiffs have set forth a cognizable cause of action in negligent entrustment of a vehicle as to defendant parents. Contrary to the defendants’ contention, the cause of action of negligent entrustment is pled as a separate and distinct cause of action and is no way reliant on the cause of action in negligence per se. The defendants’ motion to reargue is granted to the extent that the Court’s Order granting the plaintiffs’ underlying motion to dismiss the affirmative defense of failure to state a cause of action as to the second cause of action sounding in negligence per se against John Squires and Diane Wolfe, is reversed.
The standards for summary judgment are well settled. A Court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is; therefore, entitled to summary judgment as a matter of law. Thus, when faced with a summary judgment motion, a court’s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial.
The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issue of fact. If this initial burden has not been met, the motion must be denied without regard to the sufficiency of the opposing papers. Once this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form, sufficient to create material issues of fact requiring a trial. Mere conclusions and unsubstantiated allegations or assertions are insufficient even if alleged by an expert.
Defendant parents can only be directly liable in negligence to plaintiff if the facts indicate that they negligently entrusted their vehicle to defendant driver and/or that they were negligent per se in negligently entrusting their vehicle to defendant driver. It is not disputed that at the time of the accident, defendant driver was driving with a junior’s driver’s license at about 2:30 a.m., violative of Vehicular and Traffic Law §501 (3)(a) (ii) which states in part: “…[A] class DJ…license shall permit the holder to operate a vehicle in accordance with the following restrictions…from five o’clock in the morning to nine o’clock in the evening, to and from a place of business where the holder is regularly employed, or when accompanied by a duly licensed parent, guardian, a person in a position of loco parentis, driver education teacher or driving school instructor.”
Generally, a parent owes a duty to a third person for negligent entrustment of a dangerous instrument to his child when he is aware of and capable of controlling the instrument’s use. In addition, a parent’s failure to supervise a minor child may entail legal consequence where injury to a third party results, such as under circumstances where a parents negligently entrusts to his or her child a dangerous instrument, or an instrument potentially dangerous in the child’s hands, as to create an unreasonable risk to others.
Viewing the evidence in the light most favorable to the parties opposing the motion for summary judgment, the defendants in this instance, the Court finds that the defendants sufficiently created a triable issue of fact as to whether defendant parents negligently entrusted their vehicle to defendant driver, thereby breaching their duty to third parties. Although defendants deposition testimony regarding telephone contact on the morning of the accident is arguably contradictory, “any discrepancies merely go to the weight of the evidence, a matter properly addressed to the trier of fact which is in the foremost position to assess a witness’s credibility”. Accordingly, the plaintiffs’ motion for Summary Judgment regarding negligent entrustment is denied.
Accordingly, the plaintiffs have not met their burden to establish a prima facie case in negligence per se and there is no need to consider any counter argument by the defendants. In sum, Summary Judgment is denied as to the direct negligence of defendant parents. Motion by defendants, for an Order pursuant to CPLR 2221 granting leave to reargue the prior order of this Court dated March 17, 2010 granting plaintiffs’, motion dismissing the second affirmative defense of failure to state a cause of action and upon re-argument reversing said order is granted only as to the cause of action sounding in negligence per se against defendants.
The rule is that a parent owes a duty to a third person for negligent entrustment of a dangerous instrument to his child when he is aware of and capable of controlling the instrument’s use. If your child is under your custody and sued for a personal injury case, seek the representation of a Nassau Child Support Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates in order to defend your case.